final ruling KILEMPU KINOKA LAIZER TANZLII

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MOSHI AT MOSHI CIVIL REFERENCE NO.13236 OF 2024 (Arising from the ruling of Taxing Officer of the High Court of Tanzania at Moshi Registry, Hon. S.P. Mwaiseje dated 22nd May, 2024 in Taxation Cause No. 45 of 2023) KILEMPU KINOKA LAIZER……………………………………………… APPLICANT VERSUS MWANANCHI ENGINEERING CONSTRUCTION COMPANY(MECCO)..………...………………….………...…………..RESPONDENT RULING 18th Sept. & 23th Oct. 2024 A.P. KILIMI, J.: This application is for reference made by the applicant herein Kilempu Kinoka Laizer and it is brought under order 7(1) & (2) of the Advocates Remuneration Order, 2015 (hereinafter ‘the Order”) made under section 49(3) of the Advocates Act [Cap 314 R.E 2002] and it is supported by the affidavit of Lengai Sarunga Loitha applicant’s counsel. In the application the applicant is seeking for the following orders; a) That, this honorable Court be pleased to determine the validity of the ruling/ award made on 22nd May 2024 in the High Court of United Republic of Tanzania by Honorable S.P. MWAISEJE- Taxing Officer b) That, costs to be provided for. 1 In the affidavit, the learned counsel has stated the grounds for the application under paragraph 2, 3 and 4 mainly complaining that the Taxing master granted costs excessively. A brief background of the application at hand is not hard to establish, the applicant herein being a decree holder in Land Case No 21 of 2014 before this court which ended in a preliminary stage after being struck out with costs for being incompetent, filed a bill of costs through a Taxation cause No. 45 of 2023. In the bill of cost, he claimed a total sum of TZS 24,030,000/= being costs incurred during the conduct of the said land case and the taxation cause. Hon. Mwaiseje a taxing officer, after a full trial reasoned that there were a lot of time spent and effort in preparation of submission of P.O. such as doing research and reading before the hearing of P.O. She reasoned that however the requested amount of Tzs 18,060,000/= as instruction fee was too high and not fair so she instead awarded him TZS 5,500,000/= which to her was a fair amount to be taxed as instruction fee. For the costs incurred in transport as the respondent failed to produce a receipt to prove the costs incurred the amount was completely taxed off. She taxed TZS 1,350,000/= as requested being cost for attending the land case for orders and hearing. For other items No. 9,27,29,39, 35, 45 and 41 where the applicant spent more than 15 minutes for attendance, she taxed a total sum of TZS 2 1,100,000/=. For disbursement since were not in dispute she taxed TZS 120,000/=, and for the instruction fee for the said taxation cause and attendance she taxed TZS 500,000/= and TZS 200,000/= respectively. In the end she taxed a total amount of TZS 8,770,000/=. Being aggrieved with the above, the applicant has preferred this application for reference claiming that the taxed amount was excessive. At the hearing of this application, counsels agreed to dispose the matter by way of written submissions and the court granted prayer and issued filling schedule. In the exercise, Mr. Lengai S.Loitha learned counsel prepared submissions for the applicant while Mr. Gwakisa Kakusulo Sambo learned advocate filed submissions for the respondent. Both counsels complied by timely filling their submissions and their effort is appreciated. In supporting the application, Mr. Lengai argued ground number 1 and 2 collectively and stated that Taxing officer erred in law and fact as she granted costs excessively amounting to Tsh 5,500,000/= for the suit which was settled at the stage of preliminary objection. He argued that the taxed amount is not prescribed by the law as the matter was settled at Preliminary stage of the case by the trial court upholding a preliminary objection. He submitted that as far as Land case No.21/2014 was settled at early stage of Preliminary objection, the 3 taxing officer was supposed to be guided by the 11th schedule item m(ii) of the Order which provides for Tsh.1,000,000/= as a fee for opposed application/preliminary objection. He further argued that the law does not allow the taxing officer to grant costs which are not prescribed unless the Judge of the High Court for special reasons to be certified allows costs in addition to the costs provided by the scale. Arguing the third ground Mr. Lengai submitted that the hearing of the preliminary objection of the land case No. 21 of 2014 was conducted for one day only which was on 28th July 2023 as per the ruling of the High Court. He submitted that items 9, 27,29 and 39 was not shown in the ruling of the Land Case No. 21 of 2014 as there is nowhere the said PW1 and PW2 were heard. He stated that the respondent included the bill of costs for PW1 and PW2 who were not part of the ruling and thus make the whole bill of costs incompetent as it contains items which are not part of the proceeding. It was Mr. Loitha’s submission that items 9,27,29, and 39 were misplaced and made the whole taxation cause No. 45 of 2023 irrelevant and incompetent because the respondent mixed the items which are not correct with correct ones. In response, Mr. Sambo in the outset prayed to adopt contents of his counter affidavit to form part of the reply submission. He submitted that since the learned counsel of the applicant did not represent the 4 applicant during the trial of the land case No. 21 of 2014 that is why he failed to understand where the case was coming from. He submitted that had the applicant counsel gone through the entire proceedings of the Land case No. 21 of 2014 would have appreciated that the entire bill of costs was taxed as per the law. Responding on the first two grounds, he said the taxing master granted costs as per the prescribed scale and circumstances of the case thus he argued that the taxing master had jurisdiction to tax the bill of costs before her and that she properly applied her discretion. He submitted that the amount awarded of Tshs 5,500,000/= meets the end of justice in mind considering the time which was spent in defending Land case No 21 of 2014. He further submitted that upon being entrusted with defending the said case he perused and prepared a number of documents such as written submissions, lists of additional documents, notice to produce secondary evidence, amended written statement of defence, notice of preliminary objection, and preparation for hearing and defending the raised Preliminary Objection which was later sustained. Mr. Sambo argued that the value of the disputed property was Tshs. 350,000,000/= as per the amended plaint and when subjected to the Order as per 9th schedule item 7, the instruction fee was well taxed though below the required scale. 5 He argued that the applicant counsel relied on order 41 and 46 of the Order without considering the 9th schedule as if is not part of the law. He contended that this was a misinterpretation and application of the law as the 9th schedule itself has a purpose. He fortified his argument by referring to the decision of this Court in Uru Shimbwe Rural Primary Co-operative Society vs. Mary Siril Chuwa and 7 Others, Consolidated Civil Reference Number 1 and 3 of 2021. He submitted that since the contested amount was Tsh 350,000,000/= thus the awarded amount of Tshs 5,500,000/= as instruction fees met the end of justice. Mr. Sambo contended that Order 46 of the Order is not applicable in the reference at hand as the taxing officer only applied the schedules of the order thus there were no need to apply the said order. He argued that the issue was not that the matter ended at preliminary objection stage but the time taken in defending the matter from 2013 to 2023 which was 9 years. It was his further submission that the amount involved in dispute and the fact that it previously went into a full trial and the importance of the case to the respondent all together justified the award of Tsh. 5,500,000/= as instruction fees. He argued that the counsel was misleading the court by referring to 11th schedule of the order particular in item k (i) as the provision was not applicable. 6 Arguing further he submitted that even the provision of 11th schedule item No. m(ii) of the order applies to applications, notice of motion or chamber summons (including appeal from taxation) therefore does not apply to the main case. Submitting on ground number three Mr. Sambo stated that had the applicant’s counsel went on the entire proceedings of the land case No. 21 of 2014 would agree that the claims in items 9, 27, 29 and 39 were valid as the respondent counsel appeared in court and he was coming from Arusha to Moshi to attend the matter. He added that also item 35, 41 and 45 were properly taxed because the matter was heard between the parties, he argued that the applicant counsel could not expect to see appearance in a ruling of the court. He submitted that if the learned counsel needed to see what transpired in items No. 9,27,29,35, 39, 41 and 45 he ought to have visited the proceedings. He added that order 45 was not applicable to the case at hand. In the end Mr. Sambo prayed for the application to be dismissed with costs for lacking merits. In a short rejoinder Mr. Lengai, prayed for this court to use order 46 of the Advocate Remuneration and reject the award of Tsh 8,770,000/= given by Taxing officer in Taxation Cause No 45 of 2023 as the same was defective as the respondent mixed the costs of Land case 7 No. 21 of 2014 of which were quashed by the CAT in Civil Appeal No. 110 of 2018 which ordered retrial. He added that the respondent included costs of taxation cause No. 45 of 2023 in items 1,2,3,4,5,6,7,8,9,10,11,12,20,21,23,24,25,26,27,28,29,26,27,28,29,30,3 1,32,33,34,35,36,37,38,39,40,41,42,43,44,45,46,47,48,49,50,51,52,53,5 4 &55. Mr Lengai explained further those proceedings in land case No. 21 of 2014 was quashed by CAT Civil Appeal No. 110 of 2018 thus there was no more proceedings remained subjected to taxation. He was of the view that the respondent misleads the hon. taxing officer and as a result she erred in law and fact by awarding Tshs. 8,770,000/= in Taxation cause No 45/2023 which included the current costs incurred in attending the case before Hon. Simfukwe J and the one which was incurred when attending the case before Hon. Sumari, J. In the end he prayed for this court to allow this civil reference with costs and object award of Tshs 8,770,000/= given by taxing officer to the respondent by being defective as it was mixed with costs of quashed proceedings. Having considered the rival submissions above, the vexing issue before me is whether this application has merit. On the first two grounds the applicant is challenging the order of the taxing officer that the award ordered was excessive contrary to what is provided in the Advocates 8 Remuneration Order, 2015. According to him the instruction fee awarded was excessive because the case was settled at the stage of preliminary objection. He was of the view that since the case ended at early stage of preliminary objection, the taxing officer was supposed to be guided by the provision of the 11th schedule item m (ii) of the order. Looking at the cited provision by the learned counsel the same provides for applications, notices of motion or chamber applications, (including appeals from taxation) where as in paragraph ii is related to opposed application. As rightly argued by the respondent’s counsel, it is also the finding of this court that since the present matter emanated from a suit and not an application the cited provisions are not applicable. The respondent’s counsel on the other hand argued that the taxed amount of Tshs. 5,500,000/= met the ends of justice considering the time spent in defending the case, the value of the suit land and preparation of the relevant documents. In my view the fact that the applicant appeared to defend the proceeding instituted by the respondent at this court, the relevant provision of law applicable at this juncture is at 11th schedule item (d) which provides Where the proceedings are defended or to defend such proceedings such sum as the Taxing Officer shall consider reasonable but not be less than 1,000,000/=. 9 This provision gives the taxing officer power to exercise his/her discretion, I am mindful in doing so, the Taxing Officer, shall take into consideration the other fees and allowances to the advocate (if any) in respect of the work to which any such allowance applies, the nature and importance of the cause or matter, the amount involved, the interest of the parties, the general conduct of the proceedings, and all other relevant circumstances. Nonetheless, the brief fees are based on the amount of work involved in preparing for the hearing, the difficult and importance of the case and the amount involved. (See Premchand Rainchand vs Quarry Services of EA. Ltd (1972) EA 162 and Haji Athumani Issa vs Rweijama Mutatu [192] TLR 372. Therefore, in the above regard I may say the real purpose of cost is to reimburse the successful party and not to punish the looser one. (See Wambura Chacha V. Samson Chorwa (1973) LRT No. 4). At his argument the counsel for decree holder submitted that the amount claimed as instruction fees was for preparing defence and prosecute it, thus he perused a number of documents and laws applicable, also prepared pleadings and submissions which were filed in support of the said objection. 10 I have considered the above avows by the decree order counsel, but also being considerate to the general conduct of the proceedings in this court which this bill of costs emanates, I find the taxed amount was excessive. In the circumstance I order the instruction fee to be taxed at 2,000,000/= which I believe is reasonable and fair. Moving on to the third ground, the applicant is challenging the decision of the taxing officer that she erred by granting items 9,27 and 39 at the rate of Tsh. 100,000/=each and items No. 35 and 45 each at the rate of Tsh 200,000/= and item 41 at the rate of 300,000/= while the hearing of the suit was not conducted in the said dates rather it was only conducted on 28th July 2023. I have gone through the bill of costs on the relevant items as pointed by the applicant’s counsel and noted that in all the pointed items referred to the proceedings before Hon. Sumary J. which was conducted in the year 2016. This is the case which was subject to the trial denovo and it ended on 18th October 2016, the same did not order costs to shoulder by the applicant. Moreover, the appeal filed at the court of appeal vide civil appeal no. 110 of 2018 which was concluded ordered each party to bear its own costs. Therefore, I subscribe with the stance by the applicant’s counsel that the costs for attendance therein does not 11 attract costs to the applicant due to the final orders of the two matters above. Thus, ought to have been taxed off. In conclusion thereof, as endeavours above, the bill of costs filed by respondent before the Taxing Officer is hereby reduced and taxed at Tshs. 2,000,000/= (two million only) which I believe is reasonable and fair. Order accordingly DATED at MOSHI this 23rd day of October, 2024. X JUDGE Signed by: A. P. KILIMI Court: Ruling delivered today on 23rd day of October, 2024 in the presence of Mr. Lengai Loitha learned advocate for the applicant and applicant and respondent absent. Sgd; A. P. KILIMI JUDGE 23/10/2024 12